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Directory of Legal Information on Statute of Limitations Information for Personal Injury Insurance Claims for Motor Vehicle Accidents, Dog Bites, Premises Liability, and Claims Against Governmental Entities


 
This section will answer questions SOLELY regarding statute of limitations issues relating to the following tort cases: Personal Injury Insurance Claims for Motor Vehicle Accidents, Dog Bites, Premises Liability, and tort claims against governmental entities. There are many statute of limitations issues dealing with other causes of action [lawsuits for intentional harm (assault and battery), malpractice, product liability, contracts, criminal prosecution etc.], but we DO NOT address those here.
 
Our focus is SOLELY insurance injury claims: this directory of legal information is limited to claims for personal injury damages, including pain and suffering, wage loss, and partial disability where an insurance liability policy (or self-insurance company fund) is available to pay settlement damages for the bodily injuries-or where the claim is against a governmental agency. You are NOT authorized to use any material on this page for other types of claims because the law in one of those areas could be a lot different from personal injury insurance claim law.
 
What is the so-called "statute of limitations" for tort personal injury damages claims?
Each state has a statute whereby there is a time within which a lawsuit must be "filed and served", or it will be forever barred. That is the statute of limitations: it limits the time one has to pursue a tort injury claim. It is not a squishy thing where you can make an excuse for not filing in time, no matter how good your excuse ("I got in an accident a week before the expiration of the statutory time and was recovering in the hospital" will have about as much impact on the judge as "my dog ate my lawsuit on the last day").
 
How does it affect my tort insurance claim for personal injuries, including pain and suffering? When does the statute of limitations start running "on the clock"?
You will be forever barred from recovery if you fail to preserve your claim by filing and serving it in time. Other than specific age, competency, or access disabilities, THERE ARE NO EXCEPTIONS, even if your lawsuit is a slam-dunk winner. You could have a personal injury claim of agreed liability (even where the insurance adjuster admits liability) and the only argument is over the value of a huge damages claim; but you will have no means of recovery if you let the statute of limitations lapse.
 
The statute starts running "on the clock" the day that you discover you have suffered injury as the result of the actions (or inactions) of another. In personal injury claims, that is the day of the incident.
 
How can I learn the Statute of Limitations in the state where my personal injury claim would have to be brought to trial?
SettlementCentral.Com has a list of state statutes, but we only update them once a year, so the law in your state could have changed. If you want to see where your state set its statute of limitations as some point within the past year, please start with our access page, Statute of Limitation by State for Personal Injury Insurance Claims -- State Listings of Statute of Limitations for Personal Injury Insurance Claims.
 
Are there any exemptions to this harsh result? What if it is my child who suffered car accident personal injuries?
Yes, there are exemptions for certain people who are not considered able to bring the lawsuit in a timely manner. In such cases, the statute is not applicable during certain periods. The expression is that the statute of limitations is "tolled" during those periods. People who cannot access the courts, such as children, legally insane, and the imprisoned are said to be under a disability to access the courts. Thus, the statute will not "run" during the time of disability, and most states also have a grace period after the disability is terminated in which they can bring a lawsuit.
 
There is another exemption, but it is NOT applicable to personal injury accidents, where the injury is not readily apparent to the claimant. The statute does not start to run until the plaintiff knew or should have known that he had been injured. This might apply, for example, in a negligent misrepresentation transaction in buying a house. In these cases, many states provide that the time periods provided in the statute of limitations begin to run when the injury is discovered, or with due diligence, should have been known to the plaintiff. But note that those are NOT excuses in a personal injury insurance claim inasmuch as someone in a car accident, dog bite, or slip and fall surely knows that the day they were injured is the day of the accident.
 
The insurance adjuster has continually delayed many months getting back to me on my settlement demand package and subsequent correspondence, and thus she is the one responsible for coming up against the statute of limitations date: can't I get the right to add on the months she wasted in refusing to answer me?
ABSOLUTELY NOT!! Whatever your claims adjuster did in delaying the resolution of your claim will NEVER EXCUSE your failure to file and serve a lawsuit within the time frames specified by the statute of limitations. It is your sole responsibility to preserve the claim, and no matter if it took the adjuster six months to answer your demand letter, her delay will never relieve you or your obligation to comply with the statute of limitations.
 
Why do we have a statute of limitations for personal injuries?
Our society wants to give some finality to things, and so each state has determined that it is best that claims be brought within those years before memories fade and evidence disappears. How can we ask a tortfeasor to defend herself ten or fifteen years later, when her witnesses have disappeared or died or she did not preserve certain evidence?
 
Thus, the legislature in every state has set its own statute of limitations for claims arising personal injury accidents. They range from two to six years.
 
Please also take special note of personal injury claims against governmental entities inasmuch as they frequently have ordinances that require a claimant to file a claim WITHIN A MUCH SHORTER TIME PERIOD than for claims against other defendants.
 
Is the statute of limitations the same for all kinds of lawsuits?
Absolutely not. That is why we limited this discussion to just those that are personal injury insurance claims from car accidents, dog bites, and slip and fall accidents.
 
For example, in any state, there will be a separate statute of limitations for contracts, for criminal prosecution, for libel and slander, for intentional harm (such as assault and battery), for products liability, for medical malpractice, and for many other categories of legal relief.
 
Is there anything unusual about personal injury claims against governmental entities?
Tort actions against governmental agencies are a special breed because the government gets to decide when and how you have to file an action against it.
 
There are many hundreds of cases where attorneys have fallen prey to the statutory traps laid by governmental agencies. On our members' side, we provide a series of questions in your initial letter to the claims representative that should eliminate those issues.
 
But here are some examples of rules that can be a trap if one does not comply.
 
  1. They will have a time within which you have to file a claim with the risk manager.
  2. They will have a requirement that you must state a sum certain (a fixed amount) in the claim or it will be deemed incomplete. Note: you do not get your homework back from them with a nice note to do it up right and resubmit; they will just stay silent until it is too late to amend your claim.
  3. They will have a time within which you have to file and serve a lawsuit AFTER you get a denial from the claim you just submitted (e.g., a lawsuit must be filed and served within eight months following denial of a claim).
  4. They will have a rule that the lawsuit must first be served upon the risk manager before it is served upon the head office.
 
When should I start to think about the statute of limitations for personal injury insurance claims?
We recommend that one of the first things you should do is to write to the insurance adjuster or risk manager a letter asking about how to make a personal injury claim and how to preserve the claim against the statute of limitations.
 
Examples of those letters are in our members' section under the following titles:
Initial statute of limitations letter to adjuster (insurance or self-insured company)Members onlyMembers only
Initial statute of limitations letter to risk manager (government)Members onlyMembers only
 
What do you recommend I do about the statute of limitations for personal injury insurance claims?
Keep a calendar notation on the date the statute expires, and move another alert to six months before that. When you pass that six month warning spot, you will need to either be in the midst of settlement negotiations, OR you had best start thinking about handing your personal injury claim off to an attorney.
 
Why can't I just hire an attorney a month before the statute expires and let her take over for me?
Have you ever played the game of "hot potato"? Or are we dating ourselves here? Last minute personal injury claims filings are risky business because of the greater exposure to malpractice claims. There is no room for error. NO ATTORNEY wants to pick up a hot potato just to rescue someone who has waited too long, UNLESS, of course, the claimant is willing to part with a larger than normal fee to the attorney. What kind of higher percentage contingency fee would motivate an attorney to come out of the woodwork and rescue you from disaster?
 
If you wait until the last month, you are putting a lot of pressure on the attorney, and even if you are fortunate enough to find one who will take your case at the last minute, you can also expect a higher percentage contingency fee will be charged for such emergency rescue services.
 
The attorney has to sign a lawsuit, and her signature carries with it the affirmation that she has investigated the circumstances and believes the lawsuit to be meritorious. This is called a Civil Rule 11 (or CR11) verification. Some courts have allowed awards against attorneys personally if it can be shown that there was little or no investigation of the facts alleged by the plaintiff.
 
Attorneys are not short-order drive thru businesses. They have busy schedules, and perhaps on the day you land in their office they will already have a tort trial underway, a car accident mediation scheduled next week, and a dog bite arbitration two weeks hence. Good attorneys are busy. You cannot expect them to just put everything else on hold while they rescue someone who shunned attorney services at first.
 
Of course, money talks, so you can always offer them an increased contingency fee and that might interest them enough to move your case to the head of the line (i.e., 38% versus the 33?% normally charged).
 
Plus, even aside from the workload burden on attorneys brought by last minute tort case filings, there is the prickly problem of personal service of process against the defendant. Contacting the insurance adjuster will do you no good; she will never voluntarily reveal the location of her insured-even IF she does know.
 
If you have waited until one month prior to the expiration of the statute of limitations, then-given the mobility of our society-there is a good chance the defendant will not be where he was years ago at the time of the accident, and he may even have left the state.
 
Defendants have to be served within a certain number of days (usually 90) following the date of filing of the lawsuit, so you are putting great pressure on the attorney to locate and serve them, or to arrange substituted service, such as publication or service via your state Secretary of State of Department of Licensing.
 
But these latter two means of service are fertile grounds for malpractice because there are special technical rules for using substituted service, and one error will kick out the lawsuit. Sure, the defense attorney may have a copy of the lawsuit that you sent to the insurance adjuster, but that alone does not constitute service.
 
And with substituted service, all it takes is just one technical error to doom the entire effort.
 
And, guess what, the defense will never tell your attorney that she made an error until they make a motion to dismiss for lack of personal jurisdiction WELL AFTER the statute has run, so your attorney cannot possibly correct her error and re-serve the defendant in time. The casebooks are littered with the skeletons of otherwise promising lawsuits that remain forever barred because of non-compliance with a substituted service statute.
 
The point being: the attorney already knows all of this: she is well-aware of the disruption that will be brought upon her office by taking your last-minute lawsuit filing, and she knows of the malpractice risks.
 
So, by waiting to the last minute, you can expect difficulty in locating an attorney, and even then you can expect to pay a higher contingency fee in order to attract the attention of the attorney. Doesn't that make sense and sound like a good reason to follow our advice to calendar the statute of limitations six months before it expires?
 

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The insurance adjuster (or risk manager) likes me and understands that I still have medical problems. Why can't I just get her to agree to a 6 month extension of the statute of limitations?
Well, we bet she doesn't like you well enough to lose her job over her dealings with you! Yes, many times insurance adjusters do keep their word and honor a personal injury claim that is past the statute of limitations because they allowed the claimant to finish up some necessary part of the claim (for example, a surgery) that cannot be completed prior to the expiration of the statutory period.
 
But there are also a lot of instances where the insurance adjuster gave her assurance, and after the statute ran, the claimant submitted his claim (all as agreed), only to discover that the policy limits were the minimum allowed in that state, and thus the plaintiff was limited in her recovery. For example, let's say that you do have a serious personal injury claim worth over $70,000. But if the tortfeasor has only the state minimum $15,000 in policy limits, then that policy limit, no matter how inadequate to pay your damages, is all the insurance adjuster can secure for payment of your claim.
 
Absent unusual circumstances, you will not be allowed to sue the tortfeasor personally once the statute of limitations has expired, or, if you can, you will most likely be limited to a claim against the policy limits of the insurance policy. If those limits are insufficient to cover your personal injury damages, then you will forego any shot at that money in excess of his policy limits.
 
If I just want to stop the statute of limitations from running, can I just file and serve my own lawsuit without hiring an attorney?
There is nothing preventing you from doing just that, BUT, and this is a HUGE BUT, you must be aware that any technical slip-up whatsoever will be grounds to disqualify your lawsuit. Thus, since there is no room whatsoever for error, it is always best to pay the fee and let the professional do it. You can find an attorney who will help you at a 10% discount by contacting us through the SettlementCentral.Com Attorney NetworkGo to SAVE ON ATTORNEY FEES.
 
Once I start a lawsuit, what will happen to my personal injury claim? Will it stay with my same adjuster?
Of course we cannot speak for insurance companies, and besides, their rules are changing frequently. But as a general rule, you can expect that the same adjuster you have been dealing with will not be allowed to just continue to work on the file from her desk. There is too big a risk of the plaintiff obtaining a default judgement.
 
So the personal injury claim package will be removed and transferred to a litigation department, and they, in turn, will promptly retain legal counsel to represent their insured.
 
The attorney will promptly serve upon you or your attorney his notice of appearance, followed shortly thereafter by a thick set of interrogatories for you to answer; expect to receive a notice for your deposition shortly thereafter.
 
OK, let's say I do stop the tort statute of limitations from running by filing my lawsuit, does that mean the case is going to court and I have no chance to try to settle it with the insurance adjuster?
The answer here depends upon the policies of the liability insurance company when sued, upon your relationship with the insurance adjuster so he will accept a "no-default" letter from you, and upon how long it will take you to gather and present the necessary settlement information to the insurance adjuster.
 
One can expect a better chance of cooperation from the insurance adjuster if you are not going to need more than 30 days to gather necessary evidence and present it to the insurance adjuster. Of course, if a surgery is scheduled for 45 days hence, the adjuster may be more likely to extend the statute so she can value the personal injury claim based upon the results of the surgery.
 
Your attorney (or YOU, if you are doing this part self-help) will prepare and send to the insurance adjuster a letter that promises you will not take a default judgement against her insured without giving her thirty days written notice of your intention to do so. That gives the insurance company ten more days to respond than they would have had in a normal summons service.
 
An example of that "no-default" letter is in our members' section under the following title:
"NO-DEFAULT" letter to adjuster to assure no legal action without prior written noticeMembers onlyMembers only
 

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Follow our 5 Simple Secrets to Successful Personal Injury Settlements and settle your own insurance injury claim for the maximum amount of cash, and in the time of your choice (not as dictated by the order of files in the stack on the attorney's floor)
 
Visit our Directory of Information on Car Accident Insurance Claims Procedures
for a good starting point in learning how to settle your own personal injury car accident claim.
 
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